“That’s my secret. I’m always angry.” Those words from the Hulk in “The Avengers” came to mind as liberals turned on the Supreme Court this week, calling for everything from impeaching or “disciplining” justices to scrapping the entire court. That included actor Mark Ruffalo, who plays the film-version Hulk, declaring that the court is “a political tool for the extremist, fascist faction of the GOP” and “we must revolt.”
On this July 4 weekend, revolution again seems to be in the air. Even before the recent decision overturning Roe v. Wade, congressional Democrats like Sen. Jeanne Shaheen (D-N.H.) warned the Supreme Court to reaffirm Roe or face a “revolution.”
After major rulings on gun rights, abortion and climate change, Democratic leaders and pundits declared the court to be “illegitimate.” Democratic leaders seem to have time-warped back to the time before Marbury v. Madison in 1803, when the court ruled that it must be the final arbiter of what the law means.
Sen. Elizabeth Warren (D-Mass.) not only renewed her previous call to pack the court but said the court was illegitimate for rendering decisions against “widely held public opinion.” Rep. Eric Swalwell (D-Calif.) said the court “defies the will of the people.” Reporter John Haltiwanger insisted that “the court is clearly not representative of the U.S. public. It’s supposed to be the people’s court.”
In reality, the court was never meant to be that. It was meant to be the Constitution’s court, designed to be able tostand against everyone and everything but the Constitution. In a system designed to protect the minority, the court (like the Constitution) is counter-majoritarian in much of what it does.
Until Marbury, there was an argument that Congress, not the court, could be the final arbiter of what the law says. That may have been the assumption of many, given our prior English system which allowed Parliament to interpret laws. That debate ended in 1803 when Chief Justice John Marshall declared that, while silent on this point, the intent of the Framers was to make the court the ultimate, final authority of what the law means and demands.
There were good-faith reasons to challenge Marshall at the time. After the decision, he was burned in effigy by those who saw the case as changing the Constitution without an amendment, just 15 years after its ratification.
However, putting aside the basis for the decision, it helped stabilize our system. We need a body to resolve such questions with finality and authority. As Justice Robert H. Jackson wrote in a 1953 Supreme Court decision, “We are not final because we are infallible, but we are infallible only because we are final.”
Soon after Marbury was handed down, a new argument emerged that seems to be a Democratic talking point today. Some early Americans declared they would simply defy what the court ruled after Marbury. For example, after the court ruled in Worcester v. Georgia in favor of the Cherokee tribe, Georgia refused to obey the court; President Andrew Jackson allegedly said, “John Marshall has made his decision; now let him enforce it.”
Today, we hear the same calls for defiance. Former MSNBC host Keith Olbermann declared that it “has become necessary to dissolve” the Supreme Court, adding: “The first step is for a state to ignore this ruling. You’re a court? Why and how do [you] think you can enforce your rulings?”
Rep. Maxine Waters (D-Calif.) as usual put it succinctly by yelling in front of the court: “The hell with the Supreme Court. We will defy them.”
These are the voices of an earlier age, returned like a dormant virus to our body politic. It has been a particularly virulent strain in the Democratic Party from Thomas Jefferson (who is viewed as a precursor to the party and opposed Marshall) to Jackson (who challenged the authority of the court) to Franklin Delano Roosevelt who sought to pack the Court. For all of the chest-pounding after Marbury, federal and state governments both yielded to the court’s authority. In some ways, it is the most impressive aspect of our constitutional system. Without an army or police force (beyond a relatively small number of marshals), the Supreme Court has compelled compliance with the support of the public. Americans believe in the rule of law; it is in our political DNA. As a people, we are often bitterly divided but we have always recognized the court’s legitimacy and authority.
If Olbermann is channeling Andrew Jackson, Rep. Alexandria Ocasio-Cortez seems lately to be channeling Che Guevara. She previously questioned the court’s value, asking: “How much does the current structure benefit us? And I don’t think it does.” After the Dobbs decision, she led protesters in Washington chanting “Illegitimate!” while adding, “We have to fill the streets. Right now, elections are not enough.”
Even as armchair revolutionaries, these politicians are not very convincing. It is the rage, not the revolution, that interests them. We are becoming addicted to rage, and these leaders traffic in rage to a junkie nation.
Rage can compel action, but rarely reason. Yet President Biden clearly wants to harness his party’s anger. He has long been viewed as a politician guided more by polls than principle; that is how he could express disgust over limits on abortion despite previously maintaining as a senator that abortion is “not a right but a tragedy.”
Politicians have the luxury of just following polls — but courts do not.
Biden’s “Hulk smash” moment is evident in his reckless call to end the Senate filibuster in order to enact a federal right to abortion. Seeing shifting polls, Biden has dropped his opposition to eliminating the filibuster despite once calling such a move “disastrous” for the country. He is now intent on making that disaster a reality.
It is truly the greatest example of rage over reason. The current composition of the court is due to Democrats killing the filibuster rule on Supreme Court nominations despite warnings that it would cost Democrats dearly. When they lost the Senate majority, it cost them not just three seats on the court but the Roe ruling, too.
Now, with predictions of Democrats losing both houses, Biden is calling to end the legislative filibuster. It is akin to the Titanic’s captain spotting the iceberg and immediately ordering the lifeboats to be burned.
Such politics is only likely to increase as we approach the midterms. The current push to pack, change or dispense with the court would have even greater costs. And the greatest cost will be the erosion of faith in our system among many voters. The Constitution is an article of faith that has withstood the tests of wars, economic crises and social upheaval. It was written not only for the worst of times, but in the worst of times — and ratified over the very same objections being raised by politicians and pundits today. It requires us to take a leap of faith, not just in our system but in each other.
That is why some of us take to heart the Beatles‘ lyrics: “So you say you want a revolution … you can count me out.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.